In a unanimous decision, the High Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) allowed the Crown’s appeal, restored the respondent’s convictions and remitted the matter to the Court of Appeal of the Supreme Court of Victoria (VSCA) for determination of the respondent’s application for leave to appeal against sentence. This decision considers:

The proper test for assessing whether to exclude identification evidence on the basis that the probative value is outweighed by its unfair prejudice to a defendant; and

The relevant ‘unfair prejudice’ that the exclusion under s 137 Evidence Act 2008 (VIC) (the same section under the Evidence Act 1995 (NSW)) is concerned with is that evidence will be used in an inappropriate way by a jury (at [30]). In relation to picture identification evidence, there is the risk that unfair prejudice may arise from the jury inferring from pictures kept by the police that the accused has a criminal record – the ‘rogues’ gallery effect’ (at [48]). That is, a risk that the jury infers a matter that would ordinarily be excluded from evidence.

In assessing whether it is appropriate to exclude identification evidence under s 137, practitioners should not only rely on the existence of that evidence having low probative value; rather it is necessary for the value to be outweighed by the danger of unfair prejudice. This requires consideration of the evidence relied on by the prosecution to assert identity in the context of the trial. In this case, the risk that the jury might infer the respondent was the offender from a Detective’s suspicion was not one occasioning unfair prejudice as the basis for that suspicion was in evidence before the jury (at [56]).

In order to determine whether a substantial miscarriage of justice has occurred by the failure to exclude evidence under s 137 (i.e., whether the proviso applies), practitioners should be mindful that this requires a broader consideration of the evidence relied on and the conduct of the trial (at [58]).

A ‘refresher’ on identification evidence

Identification evidence, as defined in the Evidence Act 2008 (VIC) Schedule 2 Dictionary (and similarly defined in the Evidence Act 1995 (NSW)), is evidence that the defendant (or a person who resembles the defendant) was present at a certain location where the offence was committed or an act connected to the offence was done, based on what a person saw, heard or otherwise perceived. The identification evidence in this case was the complainant’s identification of persons involved in the committing of the offences, based on photographs and CCTV.

Part 3.9 of the Evidence Act 1995 (NSW)(and the VIC Act), which applies to criminal trials specifically, distinguishes between visual identification evidence (s 114) and picture identification evidence (s 115). The latter refers to identification of a defendant by examining photos held by the police whereas the former involves identification based on what a person wholly or partly saw but excludes picture identification.

Under s 114, visual identification of a defendant is not admissible when adduced by a prosecutor unless an identification parade was used (or it would not have been reasonable to have held a parade) and the identification was made without any intentional influence on the witness.

Picture identification evidence, under s 115, is not admissible in a number of situations (concerning, broadly, whether or not the defendant was in custody and timing of examination of photographs).

Section 116 places an obligation on the court to inform a jury of a special need for caution before accepting the identification evidence and reasons for the caution, both generally and in the particular circumstances of the case. Even if the identification evidence is not excluded under ss 114 and 115, it is still possible to exclude evidence under s 137 where the probative value of the identification evidence is outweighed by its unfair prejudice to the accused.

Procedural Background

Key facts

The respondent (Dickman) was convicted by a jury for two offences in the County Court of Victoria: (i) intentionally causing serious injury and (ii) threat to kill.

The complainant (Aakbari) claimed to be a member of the Hells Angels Motorcycle Club in order to gain entry into the Dallas Showgirls nightclub. Members of the Hells Angels later discovered the complainant’s claim was false and reacted violently towards him, assaulting him with a bat. One member of the club also threatened the complainant’s life as well as the lives of his family if the complainant was to go to the police.

In hospital, the complainant gave a statement to the police. The complainant described an ‘old man’ as the relevant person who committed the assault and threatened to kill him, as well as other persons present. At trial the issue was whether the ‘old man’ was the respondent. Why that was the case was due to the following (at [10] – [16]):

(i) September 2009 – the complainant described the old man for the purposes of compiling a ‘FACEview’ image. The complainant was also shown photoboards and incorrectly identified two other offenders.

(ii) October 2009 – the complainant was shown CCTV taken from the nightclub. After reviewing the CCTV and assisted in compiling the FACEview image, the complainant identified the old man as a stocky, middle-aged, bearded male with a long ponytail, wearing a camouflage-style jacket, aged in his 50s or 60s, and 170-180cm in height (at [11]). At a later date, a police officer investigating the assault thought that the person in the CCTV footage (which the complainant had identified as the ‘old man’) was a person named ‘Cooper’. The complainant was shown a photoboard that contained a photo of Cooper amongst 11 other photographs of men (but not a photo of the respondent). The complainant selected Cooper’s photo as being the ‘old man’. It was however later revealed that Cooper had an alibi and the charges against him were withdrawn.

(iii) February 2010 – after the complainant had returned to Germany, the police informed him that they had interviewed persons whom they believed were involved in the assault and that his identification of Cooper was mistaken. Police unsuccessfully attempted to organise a further photoboard for the complainant in Germany.

(iv) August 2011 – the complainant returned to Australia to give evidence in another offender’s trial. He was asked to go through a photoboard to identify the ‘old man’, which, for the first time, included the respondent’s photo. The complainant understood that the photoboard would contain a photograph of whom the police suspected was the ‘old man’ (at [16]). He picked the respondent on the basis that he bore the closest resemblance to the ‘old man’ (the August 2011 identification). On the same day, the complainant failed to identify other persons police believed were involved.

Trial

At trial, a voir dire was conducted in order to rule on the admissibility of the August 2011 identification. The trial judge concluded that the photos used were not ‘photos kept for use by police officers’ under s 115 and therefore, admissibility was governed by s 114 and the evidence was treated as visual identification evidence (rather than photo identification evidence under s 115). The trial judge found that all preconditions for admissibility under s 114 had been met (at [26], [28]).

The trial judge considered the probative value (the same definition under the NSW Act) of the identification was low (at [30]). In assessing whether the risk of unfair prejudice would justify excluding the evidence pursuant to s 137, the trial judge stated that risk was minimal since the limitations of the evidence were apparent and under s 116 would be subject to special caution before accepting such evidence.

At trial the prosecution did not relysolely on the August 2011 identification, albeit it was considered relevant evidence and ‘a strand in the prosecution’s circumstantial case’ (at [4], [32]). The prosecution heavily relied on the description of the ‘old man’ from the CCTV footage (shown to the complainant on October 2009) and evidence from one of the persons present during the assault, Gerrie, who identified the respondent on the CCTV. Records of text communications and telephone calls between Gerrie and the respondent were also in evidence. The defence case relied on inconsistencies between the description of the ‘old man’ and the respondent’s appearance. In closing, defence counsel also referred to the October 2009 mistaken identification of Cooper.

Appeal to the VSCA

The correctness of the trial judge’s conclusion that the August 2011 identification evidence was governed by s 114 (not s 115) was not challenged on appeal. Rather, the respondent challenged the admission of the August 2011 identification evidence on two bases:

The evidence did not comply with s 114 preconditions; and

The trial judge erred in failing to exclude this identification evidence under s 137, and that occasioned a substantial miscarriage of justice.

The respondent succeeded on this second ground. In a 2-1 decision the majority of the VSCA ruled that the August 2011 evidence should have been excluded under s 137; that is to say, it was of such low probative value that it was outweighed by unfair prejudice. In assessing that low probative value the majority observed factors such as (at [35]):

(i) Reliability of the witness: the complainant had made mistaken identifications (October 2009 identification of Cooper, and of other offenders).

(ii) Delay: the complainant identified the respondent in the August 2011 identification two years after making the mistaken identification in October 2009.

(iii) Displacement effect: the complainant, having been shown the CCTV footage of the ‘old man’, may have displaced the recollection of the witness in order to conform to the CCTV footage.

(iv) Impropriety: the complainant was told that his initial identification was mistaken and was led to believe that in a further photoboard the photo of the suspect would be included; and

(v) Because of that belief the complainant would have strived to find the photo that best resembled the image of the ‘old man’ in the CCTV.

The majority held that no directions to the jury could possibly remedy the unfair prejudice occasioned by the admission of the August 2011 identification and this amounted to a substantial miscarriage of justice (at [37]).

In the High Court

Part of the appellant’s challenge to the majority’s conclusion about the August 2011 identification evidence was that the majority erred by having regard to reliability when assessing probative value (for more see IMM v The Queen [2016] HCA 14). The High Court did not decide this issue, as their Honours considered the crux of the appeal was the correctness of the VSCA’s determination that the probative value of the August 2011 identification evidence was outweighed by the danger of unfair prejudice.

Low probative value not outweighed by unfair prejudice to the accused

Firstly, the High Court determined that the VSCA had improperly narrowed their analysis under s 137 on the low probative value of the evidence rather than whether unfair prejudice outweighed it (at [44]).

As noted above, the risk of unfair prejudice arose through the police notifying the complainant that his identification of Cooper in October 2009 was incorrect and that he would be shown a further photoboard which included the suspected assailant. This gave rise to the risk that the jury would infer this suspicion was based on knowledge held by the police and not in evidence presented at trial (at [55]). That risk however did not eventuate given that the evidence presented at trial demonstrated that, even without the August 2011 identification, the respondent was the offender (i.e. the evidence of Gerrie identifying the respondent as the old man as well as telecommunication records – see [56]).

Furthermore, in contrast to the VSCA, the High Court (at [45]-[47]) considered trial directions could adequately minimise any risk of unfair prejudice.

Their Honours also provided their views as to the propriety of the police letting the complainant know that he had made a mistaken identification. The Court stated (at [50]) this was not improper if, as was the case here, the police had cogent evidence that it was someone else other than the initial identified person ‘Cooper’. Relatedly, the defence at trial seemed to have accepted that the police had excluded the possibility that Cooper was the offender and made a forensic decision not to put that possibility to the jury, nor explore Cooper’s alibi (at [53]-[54]). It was improper, however, for the police to then convey to the complainant that the photo of the suspect would be included in the later photoboard (see [55]). Notwithstanding this, the August identification was still relevant evidence and unfair prejudice did not outweigh its otherwise low probative value.

Substantial miscarriage of justice?

Although strictly unnecessary to determine (see [4]), the High Court considered whether even if the August 2011 identification evidence was wrongly admitted, did that give rise to a substantial miscarriage of justice? Their Honours agreed (at [58]) with the appellant’s submission that the VSCA erred in not considering the evidence or conduct of the trial, and even if the August 2011 identification had not been admitted, the rest of the evidence presented and relied on by the prosecution would have inevitably led to the conviction of the respondent. In support of this was that the defence did not challenge the complainant’s account that there was only one person in the Dallas club who matched his description of the old man ([59]), nor the accounts given by both the complainant and by Gerrie of the events that morning ([60]). Furthermore, challenges to the description would not have overcome the telecommunication records between the respondent and other members that placed the respondent at the time and place where the assault occurred (at [62]). The High Court concluded (at [63]) that the prosecution case was overwhelming in excluding, beyond a reasonable doubt, the possibility that the respondent was not the old man. The presence of the August 2011 identification would have done little to change what was inevitable.